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the intestate, with other members of the crew, to go forward and add new lashings under the direction of the boatswain. While seated upon the top of the deck load and nearly amidships, and engaged in passing a new lashing over the load, the vessel shipped a sea over her starboard bow, which carried the intestate over the port side of the ship and into the sea. The fault relied on below was the absence of a guard rope from the rail on the forecastle head leading aft on the port side to the shelter deck, which the intestate might have seized, or which in any case would have stopped his passage over the ship's side.

The master and chief mate testified that such lines had been maintained on either side, during the whole voyage, for the protection of the crew, and to steady them while crossing. On the other hand, the plaintiff produced a member of the crew, who swore that on the morning of the accident, a few hours before it took place, and immediately thereafter, there was no line along the port side. To corroborate this he presented a photograph, taken three or four days earlier, showing the port side forward without any such line.

The learned judge declined to receive the photograph, on the ground that it did not show the condition at the time of the accident. He dismissed the complaint, because the evidence too strongly preponderated in the defendant's favor to allow a verdict, and because the intestate, in working where he did and at such a time, assumed any risk due to the absence of the line.

Charles Warren Hastings, of New York City, for plaintiff in error.

Ralph C. Greene, U. S. Atty., of Brooklyn (Edgar G. Wandless and Joseph M. Dreyer, both of New York City, of counsel),

for defendant in error.

Before HOUGH, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above). [1, 2] The refusal of the court to allow the photograph in evidence for the purpose offered was erroneous. It was not necessary that the witness who took it should swear that it was correct at the exact moment of the accident, when he was not present. If it represented the truth in the morning, a few hours before, and at once after the accident, the jury was entitled to assume that there had been no change in the interim. It was, moreover, admissible to contradict the testimony of the master and the mate that the lines

were kept standing through the whole voyage, which it very effectually did. Not only was the plaintiff entitled to go to the jury upon the question whether the lines were standing at the time, assuming that to be relevant, but it is very hard to see how the jury could have reached a verdict for the defendant upon that issue. The learned judge was certainly in error in taking the case from the jury. [3] The question of law remains, whether the absence of the line was a default in the defendant's duty to exercise reasonable care to furnish the decedent with a reasonably safe place to work. Upon this we might accept the testimony of the master and the mate themselves as sufficient evidence, for they swore that the lines were kept standing throughout the voyage, for the purpose of protecting seamen when passing across the deck load. Nor can we see how, in the absence of such proof, there can be much doubt about the necessity of some such guard. The deck load in effect raised the well deck to the level of the forecastle head, and left no protection of any sort. Without some guard line we need no expert to show us that a case was presented, which a jury must decide, as to the safety of the place where the intestate was ordered to work. Indeed, it seems to us hard to see how a jury could find for the defendant on this issue, as well as on the issue of the absence of the line.

[4] The cause arises in substance under the Employers' Liability Act (Comp. St. §§, 8657-8665), since that is incorporated by reference. It is therefore quite unnecessary to say that the ship was unseaworthy, at least in the ordinary sense, which makes the commencement of the voyage the test. The act has made applicable to work at sea the same rules which protect work on shore, and the shipowner is as liable for the faulty use by the crew of proper apparatus as though the she broke ground. This was in effect ruled in ship were unseaworthy in equipment when Panama R. R. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748, where one of the faults was in the negligent use of apparently sound equipment. We therefore decline to engage in any discussion as to seaworthiness, beyond, indeed, observing that the term has itself the most relative meaning (The Silvia, 171 U. S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U. S. 1, 9, 24 S. Ct. 1, 48 L. Ed. 65), and that cases can arise where juries must pass upon it (Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 259, 42 S. Ct. 475, 66 L. Ed. 927). All we need, and do, hold is that under the law of master and

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charge of infringement. It involves the innovations we find in the appellant's device. The fact that it has been infringed by the appellee lends great force to the claim of its utility, at least as against the appellee. Gandy v. Main Belting Co., 143 U. S. 587, 12 S. Ct. 598, 36 L. Ed. 272; Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177.

[4] We are satisfied that claim 3 of the Judd patent is valid and infringed by what appellee builds and sells, and claims 1 and 2 of the Williams patent are also infringed. Decree reversed.

ZINNEL v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

(Circuit Court of Appeals, Second Circuit. December 7, 1925.)

No. 102.

1. Evidence 359(3)-Photograph of portion of ship, showing no lines along side where seaman was washed overboard, held admissible.

In action for death of seaman washed overboard, photograph taken shortly before accident, showing no line along side, held admissible to corroborate testimony that there was no such line shortly before or immediately after accident, and particularly to contradict testimony of master and mate that lines were kept standing through whole voyage, though correctness of photograph at instant of accident was not shown.

2. Seamen 29(5)-Whether there were lines along port side, where seaman was washed overboard, held for jury.

In action for death, plaintiff held entitled to go to jury on question whether there were lines along port side, where seaman was washed overboard.

3. Seamen

29 (5)—Whether absence of line along port side was failure to exercise reasonable care to furnish safe place to work held for jury.

5. Seamen 29 (5)-Reasonable men might differ on question whether seaman would have been saved, if there had been rope along deck where he was washed off.

Question whether seaman, who was washed off ship, would have been saved if there had been rope along deck where he was washed off, held question about which reasonable men might differ.

6. Seamen 29 (4)-Seaman, working on deck load in obedience to orders, held not to assume risk from absence of guard rope.

Seaman, washed overboard while working on deck load of lumber in obedience to orders, did not assume risk arising from absence of guard rope.

Hough, Circuit Judge, dissenting in part.

In Error to the District Court of the United States for the Eastern District of New York.

Action by Henry Zinnel, administrator of Charles J. Zinnel, against the United States Shipping Board Emergency Fleet Corporation. Judgment dismissing complaint, and plaintiff brings error. Reversed, and new trial ordered.

Writ of error to a judgment dismissing a complaint in an action at law upon a directed verdict. The plaintiff is the administrator of his son, Charles J. Zinnel, who was employed as one of the crew of the defendant's ship, Eastern Sailor, on a voyage from the port of New York to Yokohama. During a storm the vessel shipped a sea on her starboard bow and swept the intestate overboard, where he drowned after ineffectual efforts to rescue him. The action was brought under the Jones Act of 1920 (Comp. St. Ann. Supp. 1923, §§ 81464-81464t), and the faults alleged were that the vessel was unseaworthy and that the defendant did not provide the intestate with a safe place to work. The answer, besides denials, pleaded that the intestate assumed the risk of the employment.

The Eastern Sailor, between the bridge Whether absence of line along port side, or shelter deck and the forecastle head, had where seaman was washed overboard while working on deck load of lumber carried on well a "well deck," upon which she carried a deck, between bridge and forecastle head, was deck load of lumber made fast by chain lashfailure to exercise reasonable care to furnishings. This load came above the rail or gunsafe place to work, held question for jury.

4. Seamen 29 (2)-Recovery for seaman, washed overboard when working on deck load of lumber, may be had, though ship seaworthy.

Under Jones Act 1920 (Comp. St. Ann. Supp. 1923, §§ 81464-81464t), incorporating Employers' Liability Act (Comp. St. §§ 86578665) by reference, when seaman was washed overboard, shipowner is liable for faulty use by crew of proper apparatus, though ship was seaworthy.

wale on the well deck and to the level of the forecastle head. Where the deck load was stowed there was therefore no rail or other protection at the side; the edge of the timber extending to the inner skin of the ship.

Heavy weather and seas shipped on board had raised some of the timber and loosened the lashings. It became necessary to the safety of the ship that the deck load should again be made fast, and the master directed

the intestate, with other members of the crew, to go forward and add new lashings under the direction of the boatswain. While seated upon the top of the deck load and nearly amidships, and engaged in passing a new lashing over the load, the vessel shipped a sea over her starboard bow, which carried the intestate over the port side of the ship and into the sea. The fault relied on below was the absence of a guard rope from the rail on the forecastle head leading aft on the port side to the shelter deck, which the intestate might have seized, or which in any case would have stopped his passage over the ship's side.

The master and chief mate testified that such lines had been maintained on either side, during the whole voyage, for the protection of the crew, and to steady them while crossing. On the other hand, the plaintiff produced a member of the crew, who swore that on the morning of the accident, a few hours before it took place, and immediately thereafter, there was no line along the port side. To corroborate this he presented a photograph, taken three or four days earlier, showing the port side forward without any such line.

The learned judge declined to receive the photograph, on the ground that it did not show the condition at the time of the accident. He dismissed the complaint, because the evidence too strongly preponderated in the defendant's favor to allow a verdict, and because the intestate, in working where he did and at such a time, assumed any risk due to the absence of the line.

Charles Warren Hastings, of New York City, for plaintiff in error.

Ralph C. Greene, U. S. Atty., of Brooklyn (Edgar G. Wandless and Joseph M. Dreyer, both of New York City, of counsel),

for defendant in error.

Before HOUGH, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above). [1,2] The refusal of the court to allow the photograph in evidence for the purpose offered was erroneous. It was not necessary that the witness who took it should swear that it was correct at the exact moment of the accident, when he was not present. If it represented the truth in the morning, a few hours before, and at once after the accident, the jury was entitled to assume that there had been no change in the interim. It was, moreover, admissible to contradict the testimony of the master and the mate that the lines

were kept standing through the whole voyage, which it very effectually did. Not only was the plaintiff entitled to go to the jury upon the question whether the lines were standing at the time, assuming that to be relevant, but it is very hard to see how the jury could have reached a verdict for the defendant upon that issue. The learned judge was certainly in error in taking the case from the jury. [3] The question of law remains, whether the absence of the line was a default in the defendant's duty to exercise reasonable care to furnish the decedent with a reasonably safe place to work. Upon this we might accept the testimony of the master and the mate themselves as sufficient evidence, for they swore that the lines were kept standing throughout the voyage, for the purpose of protecting seamen when passing across the deck load. Nor can we see how, in the absence of such proof, there can be much doubt about the necessity of some such guard. The deck load in effect raised the well deck to the level of the forecastle head, and left no protection of any sort. Without some guard line we need no expert to show us that a case was presented, which a jury must decide, as to the safety of the place where the intestate was ordered to work. Indeed, it seems to us hard to see how a jury could find for the defendant on this issue, as well as on the issue of the absence of the line.

[4] The cause arises in substance under the Employers' Liability Act (Comp. St. §§, 8657-8665), since that is incorporated by reference. It is therefore quite unnecessary to say that the ship was unseaworthy, at least in the ordinary sense, which makes the commencement of the voyage the test. The act has made applicable to work at sea the same rules which protect work on shore, and the shipowner is as liable for the faulty use by the crew of proper apparatus as though the she broke ground. This was in effect ruled in ship were unseaworthy in equipment when

Panama R. R. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 748, where one of the faults was in the negligent use of apparently sound equipment. We therefore decline to engage in any discussion as to seaworthiness, beyond, indeed, observing that the term has itself the most relative meaning (The Silvia, 171 U. S. 462, 464, 19 S. Ct. 7, 43 L. Ed. 241; The Southwark, 191 U. S. 1, 9, 24 S. Ct. 1, 48 L. Ed. 65), and that cases can arise where juries must pass upon it (Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 259, 42 S. Ct. 475, 66 L. Ed. 927). All we need, and do, hold is that under the law of master and

10 F.(2d) 49

servant, as now in force by statute, the circumstances were such as would allow the jury to find that there was no rope, and that its absence made the intestate's place of work unsafe.

[5] There of course remains the question whether they might have also said that the fault caused the loss. About that we agree no certain conclusion was possible. Nobody could, in the nature of things, be sure that the intestate would have seized the rope, or, if he had not, that it would have stopped his body. But we are not dealing with a criminal case, nor are we justified, where certainty is impossible, in insisting upon it. We cannot say that there was no likelihood that a rope three feet above the deck made by the timber would not have saved the seaman. In this connection we note that the ship did not take aboard green water, but that the bluff of the bow broke the force of the sea shipped, which, when it reached the deck load, was made up of white water, and was not big enough to lift up a man's body. Considering that such lines were run for the express purpose, among others, of protecting seamen, we think it a question about which reasonable men might at least differ whether the intestate would not have been saved, had it been there.

But the present decision invites, by easy possibility, a jury of tailors and haberdashers to pass judgment on how to make a wet and rolling deck in a seaway a "safe place to work"; for there is no evidence at all as to what good seamanship, not the fears of tailors, require on such a ship at such a time. In my opinion, no case along these proper lines was made for a jury, and the result below was right.

vert. denged 27123687, 70 LED. 1148 46 sup (7.631.

THE BENCLEUCH.

(Circuit Court of Appeals, Second Circuit. December 14, 1925.)

No. 73.

1. Shipping 132(3)—Libelant must prove negligence of ship, after showing that loss was within exceptions contained in bills of lading.

Where ship had showed that loss was within exceptions in bills of lading, libelant had the

burden to show some fault in stowage or care of cargo, amounting to negligence on part of ship; Harter Act (Comp. St. §§ 8029-8035) being inapplicable.

2. Shipping 132(5)-More than usual loss from breakage is not prima facie evidence of negligence in stowage.

More than usual damage from breakage is not prima facie evidence of negligence in stow

age.

3. Shipping

132(5)-Evidence held to show that cargo of lemons was properly stored. In libel for loss due to damages to lemons

[6] As to the assumption of risk, on which we all agree, we need do no more than refer to our own decisions in Cricket S. S. Co. v. Parry (C. C. A.) 263 F. 523, and Panama R. R. Co. v. Johnson (C. C. A.) 289 F. 964, shipped, evidence held to show that the cargo and to the law in other circuits, Lafourche Packet Co. v. Henderson, 94 F. 871, 36 C. C. A. 519 (C. C. A. 5), and The Colusa, 248 F. 21, 160 C. C. A. 161 (C. C. A. 9).

Judgment reversed, and new trial ordered.

HOUGH, Circuit Judge (dissenting in part). I agree with this opinion regarding the admission in evidence of the photograph and the effect of previous decisions of this court as to assumption of risk; but I cannot approve of the obvious intent of the majority to dump this case on a jury with no more or different testimony than that which is now before us. Whenever a jury is asked to declare whether a certain act or omission is “lack of care according to the circumstances"-i. e. negligent-proof of the circumstances includes proof as to what skilled men habitually do under similar circumstances, unless the occurrence at bar is so familiar to a jury of the vicinage as to need no such exposition. Injury by a vehicle to a foot passenger on a New York street crossing is an instance of such familiarity. 10 F. (2d)-4

was properly stored.

4. Shipping

126-Ship, having no part in discharge of cargo, is not liable after cargo clears rail.

Ship, having no part in discharge of cargo, is not liable after cargo clears the rail. 5. Shipping 126-Use of slings in unloading cargo of lemons held improper.

Use of slings in unloading cargo of lemons held improper.

6. Shipping 132 (3)-Burden on libelant to distinguish recoverable from nonrecoverable damage.

Libelant being entitled to recover damages to lemons during unloading and transferring on wharf, but not damages during shipment, the burden rests on him to show the recoverable damages, separate and distinguished from nonrecoverable damage. 7. Shipping

142-Damages may not be recovered for goods removed before notice was given, where bills of lading required notice to be made.

Where bills of lading exempt the company from any claim, notice of which was not given before removal of goods, damage may not be recovered for any goods removed before notice,

.

and in the transfer from one pier to another, which was apparently done with great indifference to the safety of the cases. All this was properly damage for which the Cunard Company is responsible. Therefore, on a new reference, the libelant may show, if he can, the damage done by these two causes; the burden resting on him to distinguish it from that done in the holds.

[7] The bills of lading in the clause quoted above exempted the company from any claim, notice of which was not given before the removal of the goods. This clause has been so often the subject of discussion in this court that we content ourselves with a reference to the last case, very recently decided, of Anchor Line v. Jackson, 9 F. (2d) 543 November 9, 1925. It is valid and must be enforced. The bills were issued by the company and required notice to it or its agents. A libel filed in rem against the ship was not a compliance with the requirement; it did not advise the company to prepare against the claim. Rather it indicated a purpose to hold only the ship, with which, at least primarily, the company had nothing to do. Hence we hold that no damages may be recovered for any goods removed before some notice was given to the company, and that the libel will not answer as such.

It is argued that the company has raised no such point and did not plead it. But the cause must in any case go back for a new hearing, and we need not decide whether it would have been ground for a reversal, had it stood alone. We can see no reason, especially in a case drawn out as this has been, why the respondent should not amend its answer, even at this late stage, and prove any defense it may have upon the new reference. This we say quite independently of our express ruling in the General George W. Goethals, 298 F. 935.

[8] Next we will allow the amendment, asked by the respondent, setting up the clause in limitation of liability. This the respondent asked leave to plead, and was denied below, unwarrantably in our judgment. We do not say that, if the clause had gone to a defense, properly pleadable before trial, the District Judge might not have been right; but it sought to set up matters relevant only on the reference, which it was clearly erroneous to refuse, when application had been made before the reference had begun. Delays ought not to prevent the very right from appearing, unless the other side will be prejudiced. Upon the new reference the company may limit its recovery according to that clause.

[9, 10] As to the lemons seized and condemned by the board of health, the clause did not apply which required notice before removal; the shippers did not themselves remove the goods, and had no power to prevent their removal. So far as the breakage in the slings or on the wharf and the delay due to the confusion of marks contributed to the decay which resulted in the seizure, the company is responsible. So far as it occurred in the Bencleuch's holds, it is on the libelant's account. It may be impossible to show how much was caused by the company's fault so limited, but we leave the question open for proof. It must be observed, however, that the admission in the bills of lading, received "in apparent good order and condition," goes no further than to create prima facie proof that to the eye the boxes were secure and sufficient, and that the lemons, so far as visible, were not damaged. It does not prove that the fruit was inherently sound. The Oriflamme, Fed. Cas. No. 10,571; The California, Fed. Cas. No. 2,314; The Peter der Grosse, L. R. 1 P. D. 414. There is no such proof in the record, but the libelant may be able to supply it. [11] We do not think that there should be full interest in such a case. The libel was filed on August 10, 1917; the answer of the claimant six months later. No doubt the libelant had little control over the petitions, and the delays in filing the answers of the company till September, 1918, and of the stevedores till February, 1919, are not chargeable to him. Delays are indeed involved in the fifty-sixth rule. But no notice of trial was given till April, 1920, a delay of over 13 months after the cause was at issue. Moreover, after the interlocutory decree was filed on the last day of the year 1920, the hearings were not brought on till September, 1921, and were drawn out till November 10, 1922, quite unnecessarily. There was here a delay of at least two years, for which the libelant is certainly responsible. The interest will therefore begin to run on August 10, 1919, two years after the libel was filed. The Arpillao, supra.

The decree is affirmed as to the claimant with costs in the District Court against the libelant, and with costs in this court against the Cunard Steamship Company. The decree is reversed as to the Cunard Steamship Company, and the cause referred to William Parkin, Esq., as commissioner of this court, to fix the damages in accordance with the foregoing opinion, unless the parties can come to some agreement as to their amount.

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